Editorial: Jurors hold power through nullification

Saturday

It's a civic responsibility that many take lightly – and some even try to avoid.

Serving as a juror gives 12 people temporary power to decide the fate of a neighbor's liberty or financial security.

State Supreme Court Chief Justice Mark Martin has declared July as Juror Appreciation Month, saying: "Jurors are a fundamental part of the American judicial system. Were it not for the thousands of North Carolinians who perform this important civic duty throughout our great state each month, the Judicial Branch could not complete its important mission of administering justice for all."

But when a law is thought to be immoral or wrong, is justice really being served?

That's where one of the jury's most important, yet discouraged, powers comes in: nullification.

Jury nullification is the right, and obligation, of the jury to not only judge the facts of the case, but also the law itself.

However, you'd be hard-pressed to find a judge or prosecutor who would admit to or allow such a thing.

In 1895, the U.S. Supreme Court ruled 5-4 in Sparf v. United States that trial judges don't have to inform jurors of their right to nullify the law. Judges typically instruct juries to decide a case based on the law as it's explained to them from the bench.

But no federal court has disputed that juries have the power to set the law aside. The Fourth U.S. Circuit Court of Appeals – whose rulings are binding on North Carolina – affirmed this in the 1969 case of U.S. v. Moylan.

"We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence," the Fourth Circuit stated in its Moylan opinion. "This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge."

Kirsten Tynan of the Fully Informed Jury Association says some state constitutions – Maryland, Oregon, Georgia and Indiana – recognize nullification, but do not allow it to be directly introduced in the courtroom.

Thursday morning, Georgia defense attorney Catherine Bernard posted on Facebook that she was quoting to the jury the section of that state's constitution on nullification when the judge interrupted and told them it was "not a correct statement of the law."

Those who promote the practice often warn prospective jurors intent on nullification to give no hints to even knowing about it, as that's a good way to be removed from the pool quickly.

Some jury rights advocates have been arrested on charges of contempt of court, obstruction or jury tampering for merely distributing pamphlets in front of the courthouse.

"The unfortunate fact is that government will never have an incentive to tell the people they don't have to obey the government," Tynan said. "This is why the Fully Informed Jury Association exists and has chosen an educational rather than a legislative strategy.

"Rather than people begging permission from the government not to obey the government, we aim to educate people that they are the overseers of the government and not the other way around."

Tynan equates jury nullification with voting and ballot initiatives in "restraining government and tempering the law with justice and mercy."

Detractors of jury nullification like to point to the Jim Crow era when juries would find defendants not guilty – or guilty – based on race.

However, the practice has its roots in English common law and was used in the 1800s to help runaway slaves remain free. In more recent times, jurors have used nullification to protest pot laws, finding defendants not guilty, even though they clearly broke the law.

In criminal court, both the judge and prosecutor are paid by the state. The jury is the only independent body involved. It is both fitting and just that a defendant's fate rests with a jury of his or her peers.

Jurors have the power to keep government overreach in check by choosing to set bad laws aside in favor of reason and common sense.

The next time you get a notification in your mailbox to report for jury duty, remember the power you hold.

- Richmond County Daily Journal of Rockingham

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